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Blueberry Hill FILED & RECORDED UPON RECORDING RETURN TO: FAYETTE COUNTY, GA. David N. Dorough, Jr. DODSON, FELDMAN & DOROUGH, ~j~.~.j:jj:j .1.3 Attorneys At Law 6000 Lake Forrest Drive, N.W., Suite 300W. A. BALLARD, CLESK Atlanta, Georgia 30328 (404) 250-9800 DECLARATION OF PROTECTIVE COVENANTS, RESTRICTIONS AND EASEMENTS FOR BLUEBERRY HILL THIS INSTRUMENT ESTABLISHES A MANDATORY MEMBERSHIP HOMEOWNERS ASSOCIATION BUT DOES NOT SUBMIT THIS DEVELOPMENT TO THE PROVISIONS OF THE GEORGIA PROPERTY OWNER'S ASSOCIATION ACT, O.C.G.A. § 44-3-220 ET SEQ. DECLARATION OF PROTECTIVE COVENANTS, RESTRICTIONS AND EASEMENTS FOR BLUEBERRY HILL - TABLE OF CONTENTS - Article 1 Definitions ......................... -i- 1.1 "Articles of Incom_oration" .................................... -2- 1.2 "Association" . ............................................ -2- 1.3 "Bg~It~)~f~)~L~" or "Boar0" ................................ -2- 1.4 "]~th_~" ................................................ -2- 1.5 " ui der" ................................................ -2- 1.6 ".~lll~o.!LPm21~" ........................................ -2- 1.7 "Community" . ............................................ -2- 1.8 "~" . ............................................. -2- 1.9 "Lot" .................................................. -2- 1.10 "lklo. gga~" .............................................. -3- 1.11 "h~lgilg~" .............................................. -3- 1.12 "Occupant" ....................................... 7 ....... -3- i. 13 "Owner" ................................................ -3- 1.14 "Person" ................................................ -3- 1.15 "Total Association Vote" . ..................................... -3- 3.1 3.2 Article 2 Property Subject To This Declaration ................ -3- Article 3 Association Membership and Voting Rights .............. -3- Membership .............................................. -3- Voting .................................................. -4- 4.1 Purpose of Assessments Article 4 Assessments ........................ -4- 4.2 Creation of the Lien and Personal Obligation for Assessmentq ............. -4- 4.3 General Assessments ........................................ -5- 4.4 Special Assessmems ......................................... -5- 4.5 Specific Assessments ........................................ -5- 4.6 Subordination of Liens to Mortgages .............................. -6- 4.7 Remedies of the Association ................................... -6- 4.8 Date of Commencement of Assessments ............................ -7- 4.9 Budget Deficits During Declarant Control .......................... -7- 4.10 F.~o~0~LLggI~ ............................................ -7- Article 5 Maintenance: Conveyance of Common Property. to Association ........ -7- 5.1 Association's Maimenance Responsibili_ty ........................... -7- 5.2 Owner's Maintenance Responsibility .............................. -8- 5.3 Conveyance of Common Property by Declarant to Association: No Implied Right.q -8- 5.4 Partition ................................................ -9- 5.5 ~ ............................................. -9- 6.1 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.13 7.14 7.15 7.16 7.17 7.18 7.19 Article 6 Architectural Standards ..................... -9- Architectural Standards ....................................... -9- Article 7 Use Restrictions and Rules ................... -12- Rules and Regulations ...................................... -12- Residential Use ........................................... -12- ~ .................................................. -12- Vehicles: Parking ......................................... -12- ~ ................................................ -13- ~ .......................................... -13- Nuisance ............................................... -13- Unsightly or Unkempt Conditions ............................... -14- ~ ............................................... -14- Garbage Cans. Woodpiles. Etc ................................. -14- Subdivision of Lot ......................................... -14- Guns .................................................. - 14 - Fences ................................................. -15- Air-Conditioning Units ...................................... -15- ~ ................................................ -15- Artificial Vegetation. Exterior Sculpture. and Similar Items .............. -15- Energy Conservation Equipment ................................ -15- Gardens. Play Equipment and Pools ............................. -15- -ii- 7.20 Mailboxes .............................................. -15- 7.21 Clotheslines ............................................. -15- 7.22 Property_ Maintained by the Association ........................... -15- 7.23 I~[[ic,~glllaiimla ........................................ -16- Article 8 Insurance and Casualty Losses .................. -16- 8.1 l[lasurance on Common Property_ ................................ - 16- 8.2 Individual Insurance ....................................... -17- 8.3 Damage and Destruction -- Insured by Association ................... -18- 8.4 Damage and Destruction -- Insured by Owners ...................... -18- Article 9 Mortgagee Provisions .................... -19- 9.1 Notices of Action ......................................... -19- 9.2 No Priority ............................................. -19- 9.3 Notice to Association ...................................... -19- 9.4 VA/HUD Approval ........................................ -19- Article 10 ~ ........................ -20- 10.1 Easements for Use and Effioyment of Common Property_ ................ -20- 10.2 Easements for Alleys and Common Driveways ...................... -21- 10.3 Easements for Utilities ...................................... -21- 10.4 ~ ........................................ -21- 10.5 Easement for Maintenance ................................... -21- 10.6 I~asement for Drainage ...................................... -22- 10.7 Easement for Entry. Features .......................... -7 ....... -22- 10.8 Easement for Sidewalks. Signs and Perimeter Fencing ................. -22- 10.9 Temporary_ Easement During Construction and Sale Period ..............-22- Article 11 General Provisions ..................... -23- 11.1 ~ ............................................ -23- 11.2 ~ ......................................... -24- 11.3 ~ ............................................... -24- 11.4 ~ ............................................... -24- 11.5 Termination of Rights of Declarant .............................. -24- 11.6 Termination of Rights of Builder ........................ - ....... -25- 11.7 /~memJment .............................................. -25- 11.8 Gender and Grammar ....................................... -26- 11.9 ~e_Y. trallil~ ............................................. -26- 11.1 0 Captions ............................................... -26- -nl- E~OOK 12 2 8 ~E i $ 6 11.11 ]~[9_Me, zg~ ............................................. -26- 11.12 Preparer ............................................... -26- 11.13 Notices ............................................... -26- 11.14 Perpetuities ............................................. -26- 11.15 ~ .......................................... -27- 11.16 Inspection of Books and Records ............................... -27- 11.17 ]Financial Statements ......... ' .............................. -27- 11.18 ~ ............................................. -28- 11.19 Variances .............................................. -28- ~I.20 I,irigarm .............................................. -28- EXHIBIT "A" Property Submitted EXHIBIT "B" Bylaws of Blueberry Hill Homeowners Association. Inc. -iv- DECLARATION OF PROTECTIVE COVENANTS, RESTRICTIONS AND EASEMENTS FOR BLUEBERRY HILL THIS DECLARATION is made on the date hereinafter set forth by Peachtree City Holdings, L.L.C., a Georgia limited liability company (hereinafter sometimes called "Declarant"); WITN E. SgTtt WHEREAS, Declarant is the owner of the real property described in~ of this Declaration (or if not the owner has the written consent of the owner to subject such property to the terms and provisions contained herein); and WHEREAS, Declarant desires to subject the real property described in Exhibit "A" hereof to the provisions of this Declaration to create a residential community of single-family housing; NOW, THEREFORE, Declarant hereby declares that the real property described in ~ hereof is hereby subjected to the provisions of this Declaration and shall be held, sold, transferred, conveyed, used, occupied and encumbered subject to the covenants, conditions, restrictions, easements, assessments and liens, hereinafter set forth, which are for the purpose of protecting the value and desirability of and which shall run with the title to, the real property hereby and hereafter made subject hereto and shall be binding on all persons having any right, title or interest in the real property now and hereafter made subject hereto, their respective heirs, legal representatives, successors, successors-in-title and assigns and shall inure to the benefit of each owner of all or any portion thereof. Article 1 Definitions The following words, when used in this Declaration or in any Supplementary Declaration, shall have the following meanings: 1.1 "Articles of Incorporation" means the Articles of Incorporation of Blueberry Hill Homeowners Association, Inc., filed with the Georgia Secretary of State and incorporated herein by this reference as may be amended from time to t/me. 1.2 "Association" means Blueberry Hill Homeowners Association, Inc., a Georgia nonprofit corporation, its successors and assigns. 1.3 "~mJ~[J~l~tl~" or "Board" means the appointed or elected body of the Association, vested with the authority to manage the affairs of the Association under the Georgia Nonprofit Corporation Act. 1.4 "B_YAa_~" means the Bylaws of Blueberry Hill Homeowners Association, Inc., attached to this Declaration as ~ and incorporated herein by this reference as may be amended from time to time. 1.5 "Builder" means Mike Harrell & Associates, Inc., a Georgia corporation and any other homebuilder(s) so designated as a Builder hereunder by the Declarant in a recorded instrument. 1.6 "~" means any and all real and personal property, including, without limitation, easements and other interests therein, and the facilities and improvements located thereon, now or hereafter owned by the Association for the common use and enjoyment of the Owners. 1.7 "_C.9.gllggg~" refers to that certain real property described ~, attached hereto, and such additions thereto as may be made by Supplementary Declaration as provided herein. 1.8 "~" means Peachtree City Holdings, L.L.C., a Georgia limited liability company and its successors-in-title and assigns, provided in a recorded instrument, such successor-in-title or assignee is designated as the Declarant hereunder by the prior Declarant hereunder; provided, further, upon the effective date of the designation of a successor Declarant, ail rights of the former Declarant in and to such status as Declarant hereunder shall cease, it being understood that there shall be only one Declarant hereunder at any one point in time. 1.9 "Lot" means any plot of land within the Community which constitutes a single-family dwelling site as shown on a plat recorded in the land records of Fayette County, Georgia. The ownership of each Lot shall include, and there shall pass with the title to each Lot as an appurtenance thereto, whether or not separately described, all of the rights and interest of an Owner in the Common Property, as herein provided, together wi.th membership in the Association. -2- 1.10 "M.Ql:Iga~" means any and all instruments used for the purpose of encumbering real property in the Community as security for the payment or satisfaction of an obligation, including, without limitation, any mortgage, deed to secure debt or deed of trust. 1.11 "]kLollgag~" means the holder of a Mortgage. 1.12 "Occupant" means any Person occupying all or any portion of a Lot or other property located within the Community for any period of time, regardless of whether such Person is a tenant of the Owner of such property. 1.13 "Owner" means the record owner, whether one or more Persons, of the fee simple title to any Lot located within the Community, excluding, however, any Person holding such interest merely as security for the perfo,mance or satisfaction of any obligation. 1.14 "Person" includes any individual, individual acting in a fiduciary capacity, corporation, limited partnership, limited liability company, general partnership, joint stock company, joint venture, association, company, trust or other organization recognized as separate legal entity under Georgia law. 1.15 "Total Association Vote" means the votes attributable to the entire membership of the Association (including votes of Declarant) as of the record date for such action, not merely a majority vote of the members attending a meeting of members. Article 2 Property Subject To This Declaration The real property which is, by the recording of this Declaration, subject to the covenants, conditions, restrictions and easements herein set forth and which, by virtue of the recording of this Declaration, shall be held, transferred, sold, conveyed, used, occupied and encumbered subject to this Declaration is the real property described in Exhibit "A" attached hereto and by this reference made a part hereof. Article 3 Association Membership and Voting Rights 3.1 Membership. Every Person who is the record owner of a fee or undivided fee interest in any Lot that is subject to this Declaration shall have a membership in the Association. The foregoing is not intended to include Persons who hold an interest merely as security for the performance of an obligation, and the giving of a security interest shall not terminate the Owner's membership. No Owner, whether one or more Persons, shall have more than one membership per Lot. Membership shall be appurtenant to and may not be separated from ownership of a Lot. The rights and privileges of membership, including the right to vote and to hold office, may be exercised by a member or the member's spouse, but in -3- no event shall more than one vote be cast nor office held (except for Declarant) for each Lot owned. 190 3.2 Voting. Members shall be entitled to one vote for each Lot owned. When more than one Person holds an ownership interest in any Lot, the vote for such Lot shall be exercised as those Owners themselves dete,mine and advise the Secretary prior to any meeting. In the absence of such advice, or in the event more than one Person seeks to exercise it, the vote attributable to such Lot shall be suspended. Article 4 Assessments 4.1 Purpose of Assessments. The assessments provided for herein shall be used for the general purposes of promoting the recreation, health, safety, welfare, common benefit, and enjoyment of the Owners and Occupants of Lots, including, without limitation, the maintenance of real and personal property, all as may be more specifically authorized from time to time by the Board of Directors. 4.2 Creation of the Lien and Personal Obligation for Assessments. Each Owner of a Lot, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, covenants and agrees to pay to the Association: (a) general assessments; (b) special assessments; and (c) specific assessments. All such assessments, together with late charges, interest (at a rate set by the Board of Directors from time to time, but not to exceed the lesser of the maximum rate pet't~litted by law or eighteen percent (18%) per annum on the principal amount due) and costs of collection, including, without limitation, reasonable attorney's fees actually incurred, shall, from the time the sums become due and payable, be a charge on the land and shall be a continuing lien in favor of the Association on the Lot against which each assessment is made. The recording of this Declaration shall constitute record notice of the existence of the lien and no further recordation of any claim of lien shall be required. Each such assessment, together with such late charges, interest and costs, shall also be the personal obligation of the Person who was the Owner of the Lot at the time the assessment fell due. Each Owner shall be personally liable for the portion of each assessment coming due while the Owner of a Lot, and each grantee of an Owner shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance; provided, however, the liability of a grantee for the unpaid assessments of its grantor shall not apply to any first Mortgagee taking title through foreclosure proceedings or deed in lieu of foreclosure. No Owner may waive or otherwise exempt such Owner from liability for the assessments provided for herein, including, by way of illustration, but not limitation, abandonment of the Lot. No diminution or abatement of any assessment shall be claimed or allowed by reason of any failure of the Association to take some action or perform some function required to be taken or performed by the Association, the obligation to pay assessments being a separat~ and independent covenant on the part of each Owner. All payments shall be applied first to costs, then to late charges, then to interest and then to delinquent assessments. -4- 4.3 General Assessments. It shall be the duty of the Board to prepare a budget covering the estimated costs of operating the Association during the coming year. The Board shall cause the budget and the assessments to be levied against each Lot for the following period to be delivered to each member at least thirty (30) days prior to the due date of any general assessment. The budget and the assessment shall become effective unless disapproved at a meeting by a majority of the Total Association Vote and the Declarant. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason to determine the budget for any period, then and until such time as a budget shall have been determined, as provided herein, the budget in effect shall continue. General assessments shall be levied equally on all Lots and shall be paid in such manner and on such dates as may be fixed by the Board of Directors, which may include, without limitation, acceleration, upon ten (i0) days' written notice for delinquents. Unless otherwise provided by the Board, the assessment shall be paid in one annual installment. General assessments include any sums the Board determines necessary for the continued ownership, operation and maintenance of the Common Property, operating expenses of the Association, payment for any items of betterment and the establishment of reserve funds as the Board shall deem proper. General assessments may include, without limitation, sums for property taxes, insurance premiums, legal and accounting fees, management fees, charges for utilities and cleaning services, landscape maintenance, expenses and liabilities incurred as provided herein and in the Articles of Incorporation and Bylaws for indemnification of officers and directors and in connection with the enforcement of rights and duties of the Association against Owners and others. 4.4 Special Assessments. The Association may levy a special assessment if approved by two-thirds (2/3) of the Total Association Vote and the Declarant. Special assessments shall be paid as determined by the Board. The Board may permit a special assessment to be paid in installments extending beyond the fiscal year in which the special assessment is imposed. 4.5 Specific Assessments. The Board shall have the power to levy specific assessments as, in its discretion, it shall deem appropriate. Failure of the Board to exercise its authority under this Section shall not be grounds for any action against the Association and shall not constitute a waiver of the Board's right to exercise its authority under this Section in the future with respect to any expenses, including an expense for which the Board has not previously exercised its authority under this Section. Fines levied pursuant to this Declaration and the costs of maintenance performed by the Association for which the Owner is responsible shall be specific assessments. The Board may also specifically assess Owners for the following Association expenses: (a) Expenses of the Association which benefit less than all of the Lots may be specifically assessed equitably among all of the Lots which are benefitted according to the benefit received. (b) Expenses of the Association which benefit all Lots, but which do not provide an equal benefit to all Lots, may be assessed equitably among all Lots according to the benefit received. 4.6 ~ubordination of Liens to Mortgages. The lien of all assessments authorized herein is hereby made subordinate to the lien of any first Mortgage placed on a Lot if, but only if, all assessments and charges with respect to such Lot authorized herein having a due date on or prior to the date of the Mortgage as filed of record have been paid. The lien hereby subordinated is only such lien as relates to assessments and charges authorized hereunder having a due date subsequent to the date such Mortgage is filed of record and prior the satisfaction, cancellation or foreclosure of such Mortgage or the sale or transfer of the Lot pursuant to any proceeding in lieu of foreclosure or the sale of transfer of the Lot pursuant to a sale under power contained in such Mortgage. Such subordination is merely a subordination and shall not relieve the Owner of the Lot of the personal obligation to pay all assessments coming due at any time when the Owner of such Lot; shall not relieve such Lot from the lien provided for herein (except to the extent a subordinated lien is extinguished as a result of such subordination as against a Mortgagee or such Mortgagee's assignee or transferee by foreclosure); and no sale or transfer of such Lot to the Mortgagee or to any other Person pursuant to a decree of foreclosure, or pursuant to any other proceeding in lieu of foreclosure or pursuant to a sale under power, shall relieve any existing or previous Owner of such Lot of any personal obligation or relieve such Lot or the then Owner of such Lot from liability for any assessment authorized hereunder become due after such sale and transfer. 4.7 l~emedies of the Association. Any assessments or installments thereof which are not paid when due shall be delinquent. In addition to the lien rights, the personal obligation of the then Owner to pay such assessments shall remain such Owner's personal obligation and shall also pass to such Owner's successors-in-title. Such Owner shall nevertheless remain as fully obligated as before to pay to the Association any and all amounts which such Owner was obligated to pay immediately preceding the transfer; and such Owner and such successors-in- title shall be jointly and severally liable with respect thereto, notwithstanding any agreement between such Owner and such successors-in-title creating any indemnification of the Owner or any relationship of principal and surety as between themselves. Any assessment or installment thereof delinquent for a period of more than ten (10) days shall incur a late charge in an amount as the Board may from time to time determine. The Association may cause a notice of delinquency to be given to any Owner who has not paid within ten (10) days following the due date. In the event that the assessment remains unpaid after sixty (60) days, the Association may institute suit to collect such amounts and/or to foreclose its lien. Each Owner, by acceptance of a deed vests in the Association the right and power to bring all actions against such Owner personally, for the collection of such charges as a debt or to foreclose the lien. The lien provided for in this Declaration shall be in favor of the Association and shall be for the benefit of all Owners. The Association shall have the power to bid on the:Lot at any foreclosure sale and to acquire, hold, lease, mortgage and convey the same. The Association may also suspend the membership rights of the delinquent Owner, including the right to vote, -6- the right of enjoyment in and to the Common Property (but not the use of any private street providing access to the Lo0 and recreational facilities, if any, and the right to receive and enjoy such services and other benefits as may then be provided by the Association. Any such suspension shall not affect such member's obligation to pay assessments due during the period of such suspension and shall not effect the pe{manent lien on such Lot in favor of the Association. 4.8 Date of Commencement of Assessments. The assessments provided for herein shall commence as to a Lot on the date that the Lot is first occupied for residential purposes. A Lot shall be occupied for residential purposes when it has been improved with a dwelling for which a certificate of occupancy has been issued and has been conveyed to an Owner who intends to occupy the dwelling, or, if the dwelling is occupied before such conveyance, the date of first occupancy. 4.9 Budget Deficits During Declarant Control. For so long as the Declarant has the authority to appoint the directors and officers of the Association, Declarant may: (a) advance funds to the Association sufficient to satisfy the deficit, if any, between the actual operating expenses of the Association (but specifically not including an allocation for capital reserves), and the sum of the annual, special and specific assessments collected by the Association in any fiscal year (such advances shall be evidenced by promissory notes from the Association in favor of the Declarant); or (b) cause the Association to borrow such amount from a commercial lending institution at the then prevailing rates for similar loans in the local area of the Conununity. No Mortgage secured by the Common Property or any of the improvements maintained by the Association shall be given in connection with such loan. 4.10 ~. The Association shall, within five (5) days after receiving a written request therefor and for a reasonable charge, as established by the Board, certify to the amount of any unpaid assessments constituting a lien on a specified Lot. A certification letter signed by an officer of the Association or the Association's managing agent, if any, as to the amount of assessments due with respect to a Lot shall be binding upon the Association. Article 5 Maintenance: Conveyance of Common Property. to Association 5.1 Association's Maintenance Responsibility_. The Association shall maintain and keep in good repair the Common Property. This maintenance shall include, without limitation, maintenance, repair and replacement of all landscaping and improvements situated on the Common Property. The Association shall also maintain (whether or not constituting Common Property): (a) all Community entry features and perimeter fencing; (b) private streets within the Community; (c) all driveways, alleys and parking areas located on Lots but serving more than one Lot; (d) storm water drainage, retention and/or detention facilities serving the Community; and (e) the exterior portions of all Lots, including the landscaping thereon, but not including any dwellings or other structures. The Association shall replace such damaged, -7- 1228 diseased or dead grass, plants, shrubs and trees as the Board of Directors may, from time to time, decide. The Board of Directors in its sole discretion may leave portions of Lots as undisturbed natural areas and may change the landscaping in the Community at any time and from time to time. In addition, the Association shall have the right, but not the obligation, to maintain other property not owned by the Association, whether within or without the Community and to enter into easements and covenant to share costs agreements regarding such property where the Board has determined that such action would benefit the Owners. The Association shall not be liable for injury or damage to and Person or property (i) caused by the elements or by an Owner or any other Person, (ii) resulting from any rain or other surface water which may leak or flow from any portion of the Common Property, or (iii) caused by any improvements, whether or not located on the Cormnon Property, including, without limitation, any street, driveway, parking area, sidewalk, pipe, plumbing, drain, conduit, appliance, equipment, security system, or utility line or facility, the responsibility for the maintenance of which is that of the Association, becoming out of repair. Nor shall the Association be liable to any Owner for loss or damage, by theft or otherwise, of any property of such Owner which may be stored in or upon any portion of the Common Property or any other portion of the Community. In the event that the Association determines that the need for maintenance, repair, or replacement, which is the responsibility of the Association hereunder, is caused through the willful or negligent act of an Owner, or the Occupants, family, guests, lessees or invitees of an Owner, then the Association may perform such maintenance, repair or replacement and all costs thereof, not paid for by insurance, shall be assessed against the Owner as a specific assessment. 5.2 Owner's Maintenance Responsibility. Except for maintenance performed on a Lot by the Association pursuant to Section 5.1 all maintenance of the Lot and all structures and other improvements thereon shall be the sole responsibility of the Owner thereof, who shall maintain such Lot in a manner consistent with this Declaration. In the event that the Board of Directors determines that any Owner has failed or refused to discharge properly'any of such Owner's obligations with regard to the maintenance, repair or replacement of items for which such Owner is responsible hereunder, the Association shall, except in an emergency situation, give the Owner written notice of the Association's intent to provide such necessary maintenance, repair or replacement at the Owner's sole cost and expense. The notice shall set forth with reasonable particularity the maintenance, repair or replacement deemed necessary. The Owner shall have ten days after receipt of such notice within which to complete such maintenance, repair or replacement, or, in the event that such maintenance, repair or replacement is not capable of completion within a ten-day period, to commence such work which shall be completed within a reasonable time. If any Owner does not comply with the provisions hereof, the Association may provide any such maintenance, repair or replacement and all costs thereof shall be assessed against the Owner and the Lot as a specific assessment. 5.3 Conveyance of Common Property by Declarant to Association: No:Implied Rights. The Declarant may transfer or convey to the Association at any time and from time to time any personal property and any interest in improved or unimproved real property. Such conveyance -8- shall be deemed to be accepted by the Association upon delivery of any personal property or upon recordation of an instrument of conveyance of any interest in real property, and the property shall thereafter be Common Property to be used and maintained by the Association for the benefit of its members. The Declarant shall not be required to make any improvements whatsoever to property to be conveyed and accepted pursuant to this Section and shall have no duty or obligation to convey any property or property rights to the Association regardless of whether or not any such property has been made available for the use of Owners. The Declarant may reserve, by lease, license, easement or otherwise such rights of use and enjoyment in and to all or any portion of the property so conveyed as Declarant may reasonably require so long as such reservation is not materially inconsistent with the overall scheme of development for the Community. Neither the recordation of any subdivision plat nor the use by the Owners or maintenance by the Association of any property shall create any rights, easements or licenses, in the Association or the Owners, express or implied, unless and until any such property rights, easements or licenses are conveyed by the Declarant or the owner of such property to the Association or the Owners, as the case may be, by an instrument recorded in the real estate records of Fayette County, Georgia. 5.4 Partition. The Common Property shall remain undivided and no Owner shall bring any action for partition or division of the whole or any part thereof without the written consent of all Owners of all portions of the property located within the Community and without the written consent of all holders of all Mortgages encumbering any portion of the property, including, but not limited to, the Lots located within the Community. 5.5 Condemnation. In the event of a taking by eminent domain of any portion of the Common Property on which improvements have been constructed, the Association shall restore or replace such improvements so taken on the remaining Common Property, unless within 60 days after such taking, an alternative plan is approved by at least 75% of the Total Association Vote and the consent of Declarant. The provisions of this Declaration applicable to replacement or restoration of damaged improvements on the Common Property shall also apply to and govern the actions to be taken in the event that the improvements are not restored or replaced after a condemnation. Article 6 Architectural Standards 6.1 Architectural Standards. No exterior construction, alteration, addition, or erection of any improvements of any nature whatsoever, including, without limitation, a change in the color of any improvement, shall be commenced or placed upon any part of the Community, except such as is installed by the Declarant, or as is approved in accordance with this Section, or as is otherwise expressly permitted herein. No exterior construction, addition, erection, or alteration shall be made unless and until plans and specifications showing at least the nature, kind, shape, height, materials, and location shall have been submitted in writing to and approved by an Architectural Review Board established by Declarant. The Declarant may -9- 196 employ for the Architectural Review Board architects, engineers, or other Persons as it deems necessary to enable the Architectural Review Board to perform its review. The Architectural Review Board may, from time to time, delegate any of its rights or responsibilities hereunder to one or more duly licensed architects or other qualified Persons, which shall have full authority to act on behalf of the Architectural Review Board for all matters delegated. The Architectural Review Board shall adopt design and development guidelines and application and review procedures which shall be set forth in the architectural guidelines. Copies of the architectural guidelines shall be available from the Architectural Review Board for review. The Architectural Review Board shall have sole and full authority to prepare and to amend the architectural guidelines. The Architectural Review Board shall make the architectural guidelines available to Owners, builders and developers who seek to engage in development of or construction upon all or any portion of the Community and such Owners, builders and developers shall conduct their operations strictly in accordance therewith. The Declarant shall have the right to appoint all members of the Architectural Review Board. There shall be no surrender of this right except in a written instrument in recordable fo~m executed by Declarant and recorded in the land records of the Clerk of the Superior Court of Fayette County, Georgia. Upon the surrender in writing of such right, the Board of Directors shall constitute the Architectural Review Board. The Declarant hereby appoints Peachtree City Development Corporation as the sole member of the Architectural Review Board to serve in such capacity for the teLc, L of this Declaration, unless such appointment is sooner tem,inated in writing by the Declarant and either (a) another appointment is made by Declarant or (b) the Declarant surrenders its right hereunder to appoint the members of the Architectural Review Board. If the Architectural Review Board fails to approve or to disapprove submitted plans and specifications within ten (10) business days after the plans and specifications have been submitted to it, such approval shall be deemed to have been given, but as to any such approval the Owner and the Owners's heirs, successors and assigns shall be bound by and shall comply with all other provisions of this Declaration. As a condition of approval under this Section, each Owner, on behalf of such Owner and such Owner's successors-in-interest, shall assume all responsibilities for maintenance, repair, replacement, and insurance to and on any change, modification, addition, or alteration. In the discretion of the Architectural Review Board, an Owner may be made to verify such condition of approval by a recordable written instrument acknowledged by such Owner on behalf of such Owner and such Owner's successors-in-interest. The Architectural Review Board shall be the sole arbiter of such plans and may withhold approval for any reason, including purely aesthetic considerations, and it shall be entitled to stop any construction in violation of these restrictions. Any- member of the Architectural Review Board or its representatives shall have the right, during reasonable hours and after reasonable notice, to enter upon any property in the Community to inspect for the purpose of ascertaining whether or not these restrictive covenants have been or are being complied with. Such person or persons shall not be deemed guilty of trespass by reason of such entry. In addition to any other remedies available to the Architectural Review Board, in the event of noncompliance with this Section, the Architectural Review Board may record in the appropriate land records a notice of violation hereunder naming the violating Owner. Plans and specifications are not approved for engineering or structural design or quality of materials, and by approving such plans and specifications neither the Architectural Review Board, the member(s) thereof, the Association, nor the Declarant assumes liability or responsibility therefor, nor for any defect in any structure constructed from such plans and specifications. Neither Declarant, the Association, the Architectural Review Board, the Board, nor the officers, directors, members, employees, and agents of any of them shall be liable for damages to anyone submitting plans and specifications for approval, or to any owner of property affected by these restrictions by reason of mistake in judgment, negligence, or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications. Every Person who submits plans or specifications and every Owner agrees that such Person or Owner will not bring any action or suit against Declarant, the Association, the Architectural Review Board, the Board, or the officers, directors, members, employees, and agents of any of them to recover any such damages and hereby releases, remises, quitclaims, and covenants not to sue for all claims, demands, and causes of action arising out of or in connection with any judgment, negligence, or nonfeasance and hereby waives the provisions of any law which provides that a general release does not extend to claims, demands, and causes of action not known at the time the release is given. The approval of the Architectural Review Board of any proposals or plans and specifications or drawings for any work done or proposed, or in connection with any other matter requiring approval or consent of the Architectural Review Board, shall not be deemed to constitute a waiver of any right to withhold approval or consent as to any similar proposals, plans and specifications, or drawings, or matters whatever subsequently or additionally submitted for approval or consent. Notwithstanding anything to the contrary contained herein, the Architectural Review Board shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws, the architectural guidelines and any rule, regulation or use restriction promulgated pursuant thereto if it determines that waiver of application or enforcement of the provision in a particular case is dictated by unique circumstances, such as, but not limited to, topography, natural obstructions or hardship, or required by aesthetic or environmental considerations and would not be inconsistent with the overall scheme of development for the Community. No variance shall (a) be effective unless in writing, (b) be inconsistent with the overall scheme of development for the Community, or (c) estop the Architectural Review Board from denying a variance in other similar circumstances. For purposes of this provision, the inability to obtain approval of any governmental agency or the issuance of any permit, or the terms of any financing shall not be considered a hardship warranting a variance. -n- 12 2 8 19 7 Article 7 Use Restrictions and Rules 7.1 Rules and Regulatio~l& The Board of Directors may, from time to time, without a vote of the members, promulgate, modify or delete rules and regulations applicable to the Community. Such rules and regulations shall be distributed to all Owners prior to the date that they are to become effective and shall thereafter be binding upon all Owners and Occupants until and unless overruled, canceled or modified by a majority of the Total Association Vote and the consent of Declarant. 7.2 Residential U~e. Each Lot shall be used for residential purposes exclusively. Leasing of a Lot for residential occupancy shall not be considered a business or business activity. No trade or business of any kind may be conducted in or from a Lot, except that the Owner or Occupant residing in the Lot may conduct business activities within the residence so long as the business activity: (a) does not otherwise violate the provisions of the Declaration or Bylaws; (b) is not apparent or detectable by sight, sound or smell from the exterior of the Lot; (c) does not unduly increase traffic flow or parking congestion; (d) conforms to all zoning requirements for the Community; (e) does not increase the insurance premium paid by the Association or otherwise negatively affect the ability of the Association to obtain insurance coverage; (f) is consistent with the residential character of the Community; (g) does not constitute a nuisance or a hazardous or offensive use; and (h) does not threaten the security or safety of other residents of the Community, all as may be determined in each case in the sole discretion of the Board of Directors. The Board may issue rules regarding permitted business activities. The terms "business" and "trade", as used in this provision, shall be construed to have their ordinary, generally accepted meanings and shall include, without limitation, any occupation, work or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider's family and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether: (i) the activity is engaged in full or part-time; (ii) the activity is intended to or does generate a profit; or (iii) a license is required for the activity. 7.3 Signs. No sign of any kind shall be erected within the Community without the prior written consent of the Architectural Review Board. Notwithstanding the foregoing, the Board of Directors, Builder and Declarant shall have the right to erect reasonable and appropriate signs. For-sale signs, security signs and any signs required by legal proceedings may be erected upon any Lot. The provisions of this Section shall not apply to any Mortgagee in possession due to foreclosure of a first Mortgage. 7.4 ~. Vehicles shall be parked only in appropriate parking spaces serving the Lot or other areas designated by the Board of Directors. All parking shall be subject to such rules and regulations as the Board of Directors may adopt. The term "vehicles," as used herein, shall include, without limitation, motor homes, boats, personal watercraft, trailers, motorcycles, minibikes, scooters, go-carts, golf carts, trucks, campers, -12- buses, vans and automobiles. The term "parking areas" shall refer to the number of garage parking spaces and parking spaces on the Common Property. Garage doors should be kept closed at all times, except during times of ingress and egress from the garage. No vehicle may be left upon any portion of the Community, except in a garage, for a period longer than five days if it is unlicensed or if it is in a condition such that it is incapable of being lawfully operated on public highways. After such five-day period, such vehicle shall be considered a nuisance and may be removed from the Community by the Board of Directors. Any towed vehicle, boat, personal watercraft, recreational vehicle, motor home, trailer, motorcycle, minibike, scooter, go-cart, golf cart, commercial truck, camper, bus or mobile home regularly stored in the Community or temporarily kept in the Community, except if kept in a garage or other area designated by the Board, for periods longer than 24 hours each shall be considered a nuisance and may be removed from the Community by the Board of Directors. Trucks with mounted campers which are used as a primary means of transportation shall not be considered recreational vehicles, provided they are used on a regular basis for transportation and the camper is stored out of public view upon removal. 7.5 ]~. Lots may be leased for residential purposes. All leases shall have a minimum term of at least six months. All leases shall require that the Occupants acknowledge receipt of a copy of the Declaration, Bylaws, use restrictions and rules and regulations of the Association. The lease shall also obligate the Occupants to comply with the foregoing. 7.6 ~ail~:l~dl~LP~. No animals, livestock or poultry of any kind may be raised, bred, kept or peimitted on any Lot, with the exception of dogs, cats or other usual and conunon household pets in reasonable number as determined by the Board. No pets shall be kept, bred or maintained for any commercial purpose. No exterior pens for household pets shall be erected or maintained on any Lot unless approved in accordance with the provisions of Article 6 hereof. 7.7 Nuisance. It shall be the responsibility of each Owner and Occupant to prevent the development of any unclean, unhealthy, unsightly or unkempt condition on a Lot. No property within the Community shall be used, in whole or in part, for the storage of any property or thing that will cause such Lot to appear to be in an unclean or untidy condition or that will be obnoxious t° the eye; nor shall any substance, thing or material be kept that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort or serenity of the occupants of surrounding property. No noxious or offensive activity shall be carried on within the Community, nor shall anything be done tending to cause embarrassment, discomfort, annoyance or nuisance to any Person using any property within the Community. No plants, animals, device or thing of any sort shall be maintained in the Community whose activities or existence is in any way noxious, dangerous, unsightly, unpleasant or of a nature as may diminish or destroy the enjoyment of the Cormnunity by other Owners and Occupants. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as -13- may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any Lot. 7.8 Unsightly or Unkempt Conditions. The pursuit of hobbies or other activities, including specifically, without limiting the generality of the foregoing, the assembly and disassembly of motor vehicles and other mechanical devices, which might tend to cause disorderly, unsightly or unkempt conditions, shall not be pursued or undertaken in any part of the Community, except within a dwelling or an enclosed garage. 7.9 Antennas. No exterior antenna, receiving dish or similar apparatus of any kind for receiving or transmitting of radio or television signals shall be placed, allowed or maintained upon any portion of the Community, including any Lot, unless approved in accordance with the provisions of Article 6 hereof; provided, however, no such approval shall be necessary to install one antenna used to receive video programing (satellite receiving dish or television antenna) not larger than one meter in diameter or diagonal measure which blends with the color and is installed on or in the rear of the dwelling. Installation of an antenna deviating from the above provision shall be approved pursuant to Article 6 hereof as reasonably necessary to permit the reception of an acceptable quality signal. 7.10 Drainage. Catch basins, retention ponds, detention ponds and drainage easement areas are for the purpose of controlling the natural flow of water only. No obstructions or debris shall be placed in these areas. No Owner may obstruct or alter the drainage flows after location and installation of catch basins, retention ponds, detention ponds, drainage swales, storm sewers or storm drains without approval in accordance with the provisions of Article 6 hereof. 7. ! 1 Garbage Cans. Woodpiles. Etc. All garbage cans, woodpiles and other similar items shall be located or screened so as to be concealed from view from the street. All rubbish, trash and garbage shall be regularly removed and shall not be allowed to accumulate. Trash, garbage, debris or other waste matter of any kind may not be burned within the Community. 7.12 ~,~i1~. No Lot shall be subdivided or its boundary lines changed except with prior written approval in accordance with the provisions of Article 6 hereof. Declarant, however, hereby expressly reserves the right to subdivide and/or revise and re-record the subdivision plat of any Lot(s) with the consent of the Owner of the effected Lot(s) and to approve the revision and re-recording of any plat of any Lot(s) owned by a Builder, including, but not limited to, changing any Lot to Common Property or creating a public or private street over any Lot or property that was formerly a Lot, without the consent of any Person, other than the Owner(s) of such Lot(s). 7.13 Guns. The use of firearms in the Community is prohibited. The term "firearms" includes, without limitation, "B-B" guns, pellet guns and firearms of all types. -14- 7.14 Fences. No fence or fencing type barrier of any kind shall be placed, erected, allowed or maintained upon any Lot without prior written approval in accordance with the provisions of Article 6 hereof. Guidelines detailing acceptable fence styles or specifications may be issued pursuant to Article 6, but in no event may a chain link or barbed wire fence be approved; provided, however, the Declarant and the Association may erect any type of fence on the Common Property or elsewhere within the Community as they may deem appropriate or as necessary to satisfy the requirements of any law or regulation or governmental entity or for health and safety of Owners. 7.15 Air-Conditioning Units. No window air conditioning units may be installed. 7.16 Ligh_ti~. Exterior lighting on any Lot visible from the street shall not be permitted, except for: (a) approved lighting as originally installed on a Lot; (b) one decorative post light; (c) street lights in conformity with an established street lighting program for the Community; (d) seasonal decorative lights; (e) front house illumination of model homes; or (f) other lighting approved under and pursuant to Article 6 hereof. 7.17 Artificial Vegetation. Exterior Sculpture. and Similar Items. No artificial vegetation shall be permitted on the exterior of any property. Exterior sculpture, fountains, flags and similar items must be approved under and pursuant to Article 6 hereof. 7.18 Energy Conservation Equipment. No solar energy collector panels or attendant hardware or other energy conservation equipment shall be constructed or installed unless as an integral and harmonious part of the architectural design of a structure, as detecmined in the sole discretion of the Architectural Review Board in accordance with the provisions of Article 6 hereof. 7.19 Gardens. Play Equipment and Pools. No vegetable garden, hammock, statuary, play equipment (including, without limitation, basketball goals) or pool may be erected on any Lot without the prior written approval of the Architectural Review Board in accordance with the provisions of Article 6 hereof. 7.20 Mailboxes. All mailboxes serving Lots shall be approved in accordance with the provisions of Article 6 hereof. Identical replacement mailboxes may be installed without further approval; but no modification to or change in mailboxes may be made unless approved in accordance with the provisions of Article 6 hereof. 7.21 Clotheslines. No exterior clotheslines of any type shall be permitted upon any Lot. 7.22 Property Maintained by the Association. Entry features, street signs, street lights, drainage retention facilities, and landscaped areas of yards and any other property, equipment or thing maintained by the Association, regardless of whether or not located upon or within any Lot, shall not be altered, removed or additional improvements added thereto without prior approval in accordance with the provisions of Article 6 hereof. -15- 7.23 .Ta~3J~glllt~s. All vehicular traffic on the private streets in the Community shall be subject to the provisions of state and local laws concerning operation of motor vehicles on public streets. The Association is hereby authorized to promulgate, administer and enforce reasonable rules and regulations governing vehicular and pedestrian traffic, including reasonable safety measures and speed limits. The Association shall be entitled to enforce same by establishing such enforcement procedures as it deems appropriate, including levying fines for the violation thereof. In the event of a conflict between any provision of state or local law and the rules and regulations promulgated by the Association, the more restrictive provision shall govern. Only drivers properly licensed to operate motor vehicles on the public roads within the State of Georgia may operate any type of motor vehicle within the Community. All vehicles of any kind and nature which are operated on the private streets and alleys in the Community shall be operated in a careful, prudent, safe, and quiet manner and with due consideration for the rights of all Owners and Occupants. Article 8 Insurance and Casualty Losses 8.1 Insurance on Common Property. The Board of Directors shall obtain casualty insurance for all insurable improvements, whether or not located on the Common Property, which the Association is obligated to maintain. This insurance shall provide, at a minimum, fire and extended coverage and shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. The Board of Directors shall obtain a public liability policy applicable to the Common Property covering the Association and its members for all damage or injury caused by the negligence of the Association or any of its members or agents, and, if reasonably available, directors' and officers' liability insurance. The public liability policy shall have a combined single limit of at least One Million ($1,000,000.00) Dollars. Policies may contain a reasonable deductible as dete,itined by the Board of Directors. All such insurance coverage shall be written in the name of the Association and shall be governed by the provisions hereinafter set forth: (a) All policies shall be written with a company authorized and licensed to do business in Georgia. (b) Exclusive authority to adjust losses under policies obtained by the Association shall be vested in the Board of Directors; provided, however, no Mortgagee having an interest in such losses may be prohibited from participating in the settlement negotiations, if any, related thereto. (c) In no event shall the insurance coverage obtained and maintained by the Association hereunder be brought into contribution with insurance purchased by individual Owners, Occupants, or their Mortgagees, and the insurance carried by the Association shall be primary. (d) All casualty insurance policies shall have an inflation guardendorsement and an agreed amount endorsement if these are reasonably available. (e) The Board of Directors shall make every reasonable effort to secure insurance policies that will provide for the following: (i) a waiver of subrogation by the insurer as to any claims against the Board of Directors, the manager of the Association, if any, the Owners and their respective tenants, servants, agents, and guests; (ii) a waiver by the insurer of its rights to repair and reconstruct instead of paying cash; (iii) that no policy may be canceled, not renewed, invalidated, or suspended on account of the acts or omissions of any one or more individual Owners; (iv) that no policy may be canceled, not renewed, invalidated, or suspended on account of any defect or the conduct of any director, officer or employee of the Association or its duly authorized manager without prior demand in writing delivered to the Association to cure the defect or to change the conduct and the allowance of a reasonable time thereafter within which a cure may be effected by the Association, its manager, any Owner or Mortgagee, as applicable; (v) that any "other insurance" clause in any policy exclude individual Owners' policies from consideration; and (vi) that no policy may be canceled, not renewed or substantially modified without at least thirty (30) days' prior written notice to the Association. In addition to the other insurance required by this Section, the Board of Directors shall obtain worker's compensation insurance, if and to the extent necessary to satisfy the requirements of applicable laws, and a fidelity bond or bonds on directors, officers, employees and other persons handling or responsible for the Association's funds, if reasonably available. If obtained, the amount of fidelity coverage shall be determined in the directors' best business judgment, and, if available, shall at least equal three (3) months' total assessments plus reserves on hand. Fidelity coverage shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and may not be canceled, not renewed or substantially modified without at least thirty (30) days' prior written notice to the Association. The Association shall also obtain insurance coverage, if and to the extent necessary to satisfy the requirements of the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the U.S. Department of Veterans Affairs, and the U.S. Department of Housing and Urban Development, as applicable. 8.2 Individual Insurance. By virtue of taking title to a Lot subject to the terms of this Declaration, each Owner acknowledges that the Association has no obligation to provide any insurance for any portion of individual Lots and each Owner covenants and agrees with all other Owners and with the Association that each Owner shall carry all-risk casualty insurance on the Lot and all structures constructed thereon and a liability policy covering damage or injury occurring on a Lot. The casualty insurance shall cover loss or damage by fire and other hazards commonly insured under an "all-risk" policy, if reasonably available and shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. The policies required hereunder shall be in effect at all times. 8.3 Damage and Destruction -- Insured by Association. Immediately after damage or destruction by fire or other casualty to any portion of any improvement covered by insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this Section, means repairing or restoring the property to substantially the same condition and location that existed prior to the fire or other casualty, allowing for any changes or improvements necessitated by changes in applicable building codes. Any damage or destruction to property covered by insurance written in the name of the Association shall be repaired or reconstructed unless, within 60 days after the casualty, a proposal not to repair or reconstruct such property is approved by at least 75 % of the Total Association Vote and the consent of Declarant. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within such period, then the period shall be extended umil such information shall be made available; provided, however, such extension shall not exceed 60 days. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote of the members of the Association, levy a special assessment against the Owner of each Lot. Additional assessments may be made in like manner, as necessary, at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the costs of repair or reconstruction or if the improvements are not repaired or reconstructed, such excess shall be deposited to the benefit of the Association. In the event that it should be determined by the Association in the manner described above that the damage or destruction shall not be repaired or reconstructed and no alternative improvements are authorized, the property shall thereafter be maintained by the Association in a neat and attractive condition. 8.4 Damage and Destroction -- Insured by Owners. The damage or destruction by fire or other casualty to all or any portion of any improvement on a Lot shall be repaired by the Owner thereof within 75 days after such damage or destruction or, where repairs cannot be completed within 75 days, they shall be commenced within such period and shall be completed within a reasonable time thereafter. Alternatively, the Owner may elect to demolish all improvements on the Lot and remove ali debris therefrom within 75 days after such damage or destruction. -18- Article 9 Mortgagee Provisions 9. I Notices of Action. An institutional holder, insurer, or guarantor of a first Mortgage, who provides a written request to the Association (such request to state the name and address of such holder, insurer, or guarantor and the Lot number, therefore becoming an "eligible holder"), will be entitled to timely written notice of: (a) any condemnation loss or any casualty loss which affects a material portion of the Community or which affects any Lot on which there is a first Mortgage held, insured, or gua°ranteed by such eligible holder; (b) any delinquency in the payment of assessments or charges owed by an Owner of a Lot subject to the Mortgage of such eligible holder, where such delinquency has continued for a period of sixty (60) days; provided, however, notwithstanding this provision, any holder of a first Mortgage, upon request, is entitled to written notice from the Association of any default in the performance by the Owner of the encumbered Lot of any obligation under the Declaration or Bylaws of the Association which is not cured within sixty (60) days; and (c) any lapse, cancellation, or material modification of any insurance policy maintained by the Association. 9.2 No Priority. No provision of this Declaration or the Bylaws gives any Owner or other party priority over any rights of a Mortgagee of any Lot in the case of distribution to such Owner of insurance proceeds or condemnation awards for losses to or a taking of the Common Property. 9.3 Notice to Association. Upon request, each Lot Owner shall be obligated to furnish to the Association the name and address of the holder of any Mortgage encumbering such Owner' s Lot. 9.4 ~. As long as the Declarant has the right to appoint and remove the officers 'and/or directors of the Association and so long as the project is approved by the U.S. Department of Housing and Urban Development ("HUD") for insuring or the U.S. Department of Veterans Affairs ("VA") for guaranteeing any Mortgage in the Community the following actions shall require the prior approval of VA and/or HUD as applicable: annexation of additional property to the Community; dedication of Common Property to any public entity; merger, consolidation or dissolution of the Association; and material amendment of the Declaration, Bylaws or Articles of Incorporation. Article 10 10.1 Easements for Use and Enjoyment of Common Property_. (a) Every Owner of a Lot shall have a right and easement of ingress and egress, use and enjoyment in and to the Common Property which shall be appurtenant to and shall pass with the title to each Lot, subject to the following provisions: (i) the right of the Association to suspend the voting rights of a Lot Owner for any period during which any past due assessment against any Lot of the Owner remains unpaid; and, for the period of any continuing infraction of the Declaration, Bylaws or rules and regulations; (ii) the right of the Association to borrow money for the purpose of improving the Common Property, or any portion thereof, or for construction, repairing or improving any facilities located or to be located thereon and, upon the affirmative vote of the Owners of at least two-thirds of the Lots (other than Builder or Declarant) and the consent of each Builder and the Declarant, to give as security for the payment of any such loan a Mortgage conveying all or any portion of the Common Property; provided, however, the lien and encumbrance of any such Mortgage given by the Association shall be subject and subordinate to any rights, interests, options, easements and privileges herein reserved or established for the benefit of Declarant, Builder or any Owner or the holder of any Mortgage encumbering any Lot or other property located within the Community (Regardless of any contrary provision in this Declaration or in any such Mortgage given by the Association, the exercise of any rights by the holder of such Mortgage in the event of a default thereunder shall not cancel or terminate any rights, easements or privileges herein reserved or established for the benefit of Declarant or any Owner or the holder of any Mortgage encumbering any Lot or other property located within the Community.); (iii) the right of the Association to dedicate or grant licenses, permits, easements or rights-of-way over, under and through the Common Property to government entities, any quasi-governmental agency or to any utility company or cable television company; (iv) the right of the Association to dedicate or transfer all or any portion of the Common Property upon the approval of the Owners of at least two-thirds of the Lots (other than a Builder or Declarant) and the approval of Declarant; (v) all other rights of the Association, Declarant, Builder, Owners and Occupants set forth in this Declaration or in any deed conveying Common Property to the Association; and (vi) all encumbrances and other matters shown by the applicable public records affecting the Common Property. -20- (b) Any Owner shall be deemed to have made a delegation of such Owner's right of use and enjoyment in and to the Common Property and facilities located thereon to the Occupants of such Owner's Lot. 10.2 Easements for Alleys ala~l Common Driveways. Every Owner of a Lot shall have a perpetual nonexclusive right and easement of ingress and egress, use and enjoyment in and to the alleys and driveways serving such Owner's Lot which shall be appurtenant to and shall pass with the title to each such Lot. Such right shall include the use of such alley and/or driveway by the Occupants, licensees and guests of the Owner, so long as the easement rights of other Owners are not materially adversely effected. The Board of Directors may make reasonable rules and regulations regarding the use of alleys and driveways so that each Owner entitled to use such alley or driveway shall have equal use rights and to control maintenance costs of the Association. 10.3 Easements for Utilities. There is hereby reserved to the Declarant and granted to the Association a blanket easement upon, across, above and under all property within the Community for access, ingress, egress, installation, alteration, repairing, replacing, and maintaining all utilities serving the Community or any portion thereof, including, but not limited to, gas, water, sanitary sewer, telephone and electricity, as well as storm drainage and any other service such as, but not limited to, a master television antenna system, cable television system, or security system which the Declarant or the Association might decide to have installed to serve the Community. Declarant or the Association may alter drainage and water flow, install, repair, replace and maintain such wires, conduits, cables and other equipment related to the providing of any utility or service. Should any party furnishing any such utility or service request a specific license or easement by separate recordable document, the Declarant or the Board shall have the right to grant such easement. 10.4 .ga~dl~t_t0~Fflll~. The Association shall have the right, but not the obligation, to enter upon any Lot for emergency, security and safety reasons and to inspect for the purpose of ensuring compliance with this Declaration, Bylaws, and rules, which right may be exercised by any member of the Board, the officers, agents, employees, and managers of the Association and all policemen, firemen, ambulance personnel, and similar emergency personnel in the performance 'of their respective duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner. This right of entry shall include the right of the Association to enter upon any Lot to cure any condition which may increase the possibility of a fire, slope erosion or other hazard in an emergency situation and in the event an Owner fails or refuses to cure the condition within a reasonable time after requested by the Association, but shall not authorize entry into any single family detached dwelling without pet'mission of the Owner. 10.5 Easement for Maintenance. Declarant hereby grants to the Associ.ation a perpetual easement across the exterior portions of all Lots as may be reasonably necessary for the maintenance required hereunder. Such maintenance shall be performed with a minimum of interference to the quiet enjoyment to Lots, reasonable steps shall be taken to protect such property and damage shall be repaired by the Association or its contractors at their sole expense. 10.6 Easement for Drainage. There is hereby reserved to the Declarant and granted to Builder and the Association a blanket easement for creating and maintaining satisfactory drainage across Lots in the Community; provided, however, such easement area shall not include any portion of a Lot upon which the foundation of a dwelling is located. 10.7 Easement for Entry_ Features. There is hereby reserved to the Declarant and granted to the Association an easement for ingress, egress, installation, construction landscaping and maintenance of entry features and similar streetscapes for the Community, over and upon any portion of a Lot containing such entry features or streetscapes as may be more fully shown on the recorded subdivision plats for the community. The easement and right herein reserved shall include the right to cut, remove and plant trees, shrubbery, flowers and other vegetation around entry features and streetscapes and the right to grade the land under and around the same. 10.8 I~0sement for Sidewalks. Signs and Perimeter Fencing. Declarant hereby reserves for the benefit of Declarant and grants to the Association, the perpetual nonexclusive right and easement upon, over and across those strips of land twelve (12) feet in width located along and adjacent to those exterior boundaries of Lots located adjacent to streets and squares, such strips to be bounded by such exterior boundaries adjacent to streets and squares and by lines in the interior of such Lots which are twelve (12) feet from and parallel to such exterior boundaries, for the installation, maintenance, and use of such streets and roads, sidewalks, utilities, traffic directional signs, grading for proper drainage of said streets and roads, and related activities and improvements. Declarant hereby reserves and grants to the Association, the perpetual nonexclusive right and easement upon, over and across those strips of land twelve (12) feet in width located along those boundaries of all Lots that constitute part of the perimeter boundary of the Community, such easement to be for the purpose of constructing, installing, replacing, repairing and maintaining a perimeter wall or fence around the perimeter boundary of the Community, provided that neither Declarant nor the Association shall have any obligation to construct any such perimeter wall or fence by reason of this easement. 10.9 Temporary Easement During Construction and Sale Period. Notwithstanding any provisions now or hereafter contained in this Declaration, the Bylaws, Articles of Incorporation, use restrictions, rules and regulations and architectural guidelines, Declarant reserves and grants to Builder an easement, so long as the Declarant or Builder owns any property in the Community, across the Community for Declarant and/or Builder to maintain and carry on, upon such portion of the Community as Declarant or Builder may reasonably deem necessary, such facilities and activities as in the sole opinion of Declarant or Builder may be required or convenient for Declarant's and Builder's development, construction and sales activities related to the property described on Exhibit "A" to this Declaration or nearby property being developed by Declarant or Builder, including, but not limited to: the right of access, ingress and egress for vehicular and pedestrian traffic and construction activities over, -22- under, on or in the Community, including, without limitation, any Lot; the right to tie into any portion of the Community with streets, driveways, paths, parking areas and walkways; the right to tie into and/or otherwise connect and use (without a tap-on or any other fee for so doing), replace, relocate, maintain and repair any device which provides utility or similar services including, without limitation, electrical, telephone, cable television, natural gas, water, sewer and drainage lines and facilities constructed or installed in, on, under and/or over the Community; the right to grant easements over, under, in or on the Community, including without limitation the Lots, for the benefit of neighboring properties for the purpose of tying into and/or otherwise connecting and using sewer and drainage lines and facilities constructed or installed in, on, under and/or over the Community; the right to convert Lots (with the consent of the Owner thereof) to Common Property and/or streets; the right to construct recreational facilities, utilities and other improvements on Common Property; the right to carry on sales and promotional activities in the Community; and the right to construct and operate business offices, signs, construction trailers, model residences and sales offices. Declarant and Builder may use residences, offices or other buildings owned or leased by Declarant or Builder as model residences and sales offices. Rights exercised pursuant to such reserved easement shall be exercised with a minimum of interference to the quiet enjoyment of affected property, reasonable steps shall be taken to protect such property and damage shall be repaired by the Person causing the damage at its sole expense. This Section shall not be amended without the written consent of Declarant and Builder. Article 11 General Provisions 11.1 ~. Each Owner and Occupant shall comply strictly with the Bylaws, rules and regulations and use restrictions, as amended or modified from time to time, and with the covenants, conditions and restrictions set forth in this Declaration, the recorded subdivision plats for the Community and in the deed to such Owner's Lot. The Board of Directors may impose fines or other sanctions for violations of the fore?ing, which shall be collected as provided herein for the collection of assessments. All costs and expenses, including, without limitation, reasonable attorney's fees and court costs incurred by the Declarant or the Association in connection with the enforcement of a violation of the within and foregoing covenants, restrictions and easements shall be paid by the Owner found to be violating same other than Declarant and shall constitute a lien against the Lot of such violating Owner. Failure to comply with this Declaration, the Bylaws or the rules and regulations shall be grounds for an action to recover sums due for damages or injunctive relief or both, maintainable by the Association, the Declarant or an aggrieved Owner. Failure by the Declarant, the Association or any Owner to enforce any of the foregoing shall in no event be deemed a waiver of the right to do so thereafter. The Association shall have the right to record in the appropriate land records a notice of violation of the Declaration, Bylaws, rules and regulations, use restrictions or design guidelines and to assess the cost of recording and removing such notice against the Lot of the Owner who is responsible (or whose Occupants are responsible) for violating the foregoing. The Declarant shall not be liable to any Person for -23- BOOK 12257 E 209 any violations of the provisions of this Declaration, the Articles of Incorporation, Bylaws, rules and regulations and use restrictions and Declarant does not warrant to anyone that such provisions will be enforced as to any property to which this Declaration is applicable. The initiation of enforcement action from time to time by the Declarant will be for its sole benefit and Declarant specifically disavows any obligation, implied or otherwise, to maintain or enforce such provisions. 11.2 OCcupants Bound. All provisions of the Declaration, Bylaws, rules and regulations, use restrictions and design guidelines which govern the conduct of Owners and which provide for sanctions against Owners shall also apply to all Occupants and the guests and invitees of Owners and Occupants. The Owner shall be responsible for insuring that the Occupants, the guests, invitees and licensees of the Owner and Occupant strictly comply with all provisions of the Declaration, Bylaws, rules and regulations, use restrictions and design guidelines. Fines may be levied against Owners or Occupants. If a fine is first levied against an Occupant and is not timely paid, the fine may then be levied against the Owner. 11.3 Self-Help. In addition to any other remedies provided for herein, the Association, the Declarant, the Architectural Review Committee or their respective duly authorized agents shall have the power to enter upon any Lot or any other portion of the Community to abate or remove any structure, thing or condition which violates this Declaration, the Bylaws, the rules and regulations or the use restrictions. Unless an emergency situation exists, the violating Lot Owner shall be given ten days' written notice of the intent to exercise self-help. Notwithstanding the foregoing, vehicles may be towed after giving any notice required by law. All costs of self-help, including, without limitation, reasonable attorney's fees actually incurred, shall be assessed against the violating Owner as a specific assessment. 11.4 ~. The covenants, conditions, restrictions and easements of this Declaration shall run with and bind the Community, and shall inure to the benefit of and shall be enforceable by the Association, the Declarant and any Owner, their respective legal representatives, heirs, successors, and assigns, perpetually to the extent provided by law; provided, however, if and to the extent that, Georgia law limits the period during which covenants restricting land to certain uses may run, any provisions of this Declaration affected thereby shall run with and bind the land so long as permitted by such law, after which time, any such provision(s) shall be automatically extended (to the extent allowed by applicable law) for successive periods of twenty (20) years; or (b) extended, renewed, modified or terminated as otherwise provided herein or by law. 11.5 Termination of Rights of Declararlt. The Declarant is the owner of other properties in the area in which the Community is located and, as such, has, and will continue to have, a direct and beneficial interest in the enforcement of the covenants, restrictions and easements set forth herein and established hereby and may enforce compliance with such covenants, restrictions and easements notwithstanding that the Declarant may no longer have -24 - an ownership interest in the Community. Accordingly, the rights of Declarant to take, approve or consent to actions hereunder and under the Articles of Incorporation and Bylaws shall continue until the earlier of: (a) the date that the Declarant no longer owns any property for development and/or sale in the municipality of Peachtree City, Georgia; or (b) the date of recording by Declarant in the real estate records of Fayette County, Georgia of a written instrument terminating any of such rights in whole or in part. The rights of Declarant shall be independent and severable and shall not terminate by implication. 11.6 Termination of Rights of Builder. The rights of Builder to take, approve or consent to actions hereunder and under the Articles of Incorporation and Bylaws shall cease and be of no further force and effect upon the earlier of: (a) the date that the Builder no longer owns any property in the Community; or (b) the date of recording by Builder in the real estate records of Fayette County, Georgia of a written instrument terminating some or all of the rights of Builder hereunder. 11.7 Amen~ent. This Declaration may be amended unilaterally at any time and from time to time by Declarant if such amendment is necessary to: (a) bring any provision hereof into compliance with any applicable governmental statute, rule or regulation or judicial detetiiiination which shall be in conflict therewith; (b) enable any reputable title insurance company to issue title insurance coverage with respect to the Lots subject to this Declaration; (c) enable an institutional or governmental lender or purchaser of mortgage loans, including, without limitation, the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation, to make or purchase Mortgage loans on the Lots subject to this Declaration; (d) enable any governmental agency or private insurance company, including, without limitation, the U.S. Department of Housing and Urban Development and the U.S. Department of Veterans Affairs, to insure or guarantee Mortgage loans on the Lots subject to this Declaration; or (e) annex additional property to the provisions of this Declaration; provided, however, any such amendment shall not adversely affect the title to any Lot unless the Owner of such Lot consents thereto in writing. Further, Declarant may unilaterally amend this Declaration for any other purpose; provided, however, any such amendment shall not materially adversely affect the substantive rights of any Lot Owners hereunder nor shall it adversely affect title to any Lot without the consent of the affected Lot Owner. The Board of Directors, W'ith the written consent of the Declarant, and without a vote of the members may amend this Declaration for the sole purpose of electing to be governed by the provisions of the Georgia Property Owner's Association Act, O.C.G.A. § 44-3-220 et seq. In addition, this Declaration may be amended upon the affit'mative vote or written consent of the Owners of at least two-thirds of Lots and the consent of Declarant. Amendments to this Declaration shall become effective upon recordation unless a later effective date is specified therein. The consent of the Declarant to any amendment shall be evidenced by the execution of said amendment by Declarant. The consent of the requisite number of Owners to any amendment shall be evidenced by the execution of the amendment by said Owners, or, in thee alternative, the sworn statement of the President or any Vice President or the Secretary of the Association attached to or incorporated in the amendment, which sworn statement states unequivocally that -25- BOOK 122 the consent of the required number of Owners was obtained and that any notices required by this Declaration, the Bylaws, the articles of incorporation of the Association and Georgia law were given. 11.8 Gender and Grammar. The singular, wherever used herein, shall be construed to mean the plural, when applicable, and the use of the masculine or feminine pronoun shall include the neuter, masculine and feminine. 11.9 Severability. Whenever possible, each provision of this Declaration shall be interpreted in such manner as to be effective and valid, but if the application of any provision of this Declaration to any Person or to any property shall be prohibited or held invalid, such prohibition or invalidity shall not affect any other provision or the application of any provision which can be given effect without the invalid provision or application and, to this end, the provisions of this Declaration are declared to be severable. 11.10 Captions. The captions of each Article and Section hereof, as to the contents of each Article and Section, are inserted only for convenience and are in no way to be construed as defining, limiting, extending or otherwise modifying or adding to the particular Article or Section to which they refer. 11.11 No Merger. There shall be no merger of any of the covenants, conditions, restrictions or easements created or reserved hereby with the fee estate of Declarant, by reason of the fact that Declarant may own or hold the estate or interest both encumbered and benefitted by such covenants, conditions, restrictions or easements and no such merger shall occur unless and until Declarant, while owning all of the estate or interests shall execute a written statement or instrument affecting such merger and shall duly record the same. 11.12 Preparer. This Declaration was prepared by David N. Dorough, Jr., Esq., Dodson, Feldman & Dorough, L.L.P., 6000 Lake Forrest Drive, N.W., Suite 300, Atlanta, Georgia 30328. 11.13 Notices. Notices provided for in this Declaration or the Articles or Bylaws shall be in writing, and shall be addressed to any Owner at the address of the Lot and to the Declarant or the Association at the address of their respective registered agent in the State of Georgia. Any Owner may designate a different address for notices to such Owner by giving written notice to the Association. Notices addressed as above shall be deemed delivered three business days after mailing by United States Registered or Certified Mail, postpaid, or upon delivery when delivered in person, including delivery by courier service; 1 i. 14 Perpetuities. If any of the covenants, conditions, restrictions or other provisions of this Declaration shall be unlawful, void or voidable for violation of the rule against perpetuities, then such provisions shall continue only until 21 years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England. -26- ! 1.15 Indemnification. To the fullest extent allowed by the Georgia Nonprofit Corporation Code, and in accordance therewith, the Association shall indemnify every current and former officer, director and committee member against any and all expenses, including, but not limited to, attorney's fees, imposed upon or reasonably incurred by any such Person in connection with any action, suit or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which such Person may be a party by reason of being or having been an officer, director or committee member. The officers, directors and committee members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct or bad faith. The officers, directors and committee members shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association and the Association shall indemnify and forever hold each such officer, director and committee member free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any officer, director or committee member, or former officer, director or committee member, may be entitled. The Association shall maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such coverage is reasonably available. 11.16 Inspection of Books and Records. This Declaration, the Bylaws, copies of rules and use restrictions, membership register, books of account and minutes of meetings of the members of the Board and of committees shall be made available for inspection and copying by any member of the Association or by the duly appointed representative of any member and by holders, insurers or guarantors of any first Mortgage at any reasonable time and for a purpose reasonably related to such Person's interest as a member or holder, insurer or guarantor of a first Mortgage at the office of the Association or at such other reasonable place as the Board shall prescribe. The Board shall establish reasonable rules with respect to (i) notice to be given to the custodian of the records; (ii) hours and days of the week when such an inspection may be made; and (iii) payment of the costs of reproducing copies of documents. Every director shall have the absolute right at any reasonable time to inspect all books, records and documents of the Association and the physical properties owned or controlled by the Association. The right of inspection by a director includes the right to make extra copies of documents at the reasonable expense of the Association. 11.17 Financial Statements. Financial statements for the Association shall be prepared annually on such accounting basis as may be required by the Board of Directors; provided, however, after having received the financial statements, the Owners, by a majority of the Total Association Vote and the consent of Declarant, may require that the accounts of the Association be audited as a common expense by a certified public accountant. Upon written request of any institutional holder of a first Mortgage and upon payment of all necessary costs, such holder shall be entitled to receive a copy of audited financial statements within 90 days of the date of the request. BOOK 12 o 11.18 /kgLe..ed!l_e,l~. Subject to the prior approval of Declarant, all agreements and dete.,inations, including settlement agreements regarding litigation involving the Association, lawfully authorized by the Board of Directors, shall be binding upon all Owners, their heirs. legal representatives, successors, assigns and others having an interest in the Community or the privilege of possession and enjoyment of any part of the Community. i1.19 Variances. Notwithstanding anything to the contrary contained herein, the Board of Directors shall be authorized to grant individual variances from any of the provisions of this Declaration, the Bylaws and any rule, regulation or use restriction promulgated pursuant thereto, if it determines that waiver of application or enforcement of the provision in a particular case is warranted and would not be inconsistent with the overall scheme of development for the Community. 11.20 Litigation. No judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by at least 75 % of the Total Association Vote and the consent of Declarant. This Section shall not apply to (a) actions brought by the Association to enforce the provisions of this Declaration (including, without limitation, the foreclosure of liens), (b) the imposition and collection of assessments as provided herein, (c) proceedings involving challenges to ad valorem taxation, or (d) counterclaims brought by the Association in proceedings instituted against it. This Section shall not be amended unless such amendment is made unilaterally by the Declarant as provided herein or is approved by the percentage votes necessary to institute proceedings as provided above. IN WITNESS WHEREOF, the Declarant herein hereby executes this instrument under seal, this II~ day of /4[~l~-o~[,x~~ 1998. DECLARANT: By: Signed, sealed, and delivered in the presence of: WITNESS NOTARY PUBLIC ' '- My Co~ission Expires: [AFFIX NOTARY SEAL] Peachtree City Holdings, L.L.C., a Georgia limited liability company -- Jose~ ~. ' Black, President/ Chief Operating Officer -28- EXHIBIT "A" All that tract or parcel of land lying and being in Land Lot 157 of the 7th District, City of Peachtree City, Fayette County, Georgia being more particularly shown on that certain Final Plat recorded on October 17, 1997 in Plat Book 29, page 198, Fayette County, Georgia land records; reference to said plat of survey and the record thereof being hereby made for a more complete description. 12o o., - 215 EXHIBIT "B" BYLAWS OF BLUEBERRY HILL HOMEOWNERS ASSOCIATION, INC. Prepared By: David N. Dorough, Jr. DODSON, FELDMAN & DOROUGH, L.L.P. Attorneys at Law 6000 Lake Forrest Drive, N.W., Suite 300 Atlanta, Georgia 30328 (404) 250-9800 BYLAWS OF BLUEBERRY HILL HOMEOWNERS ASSOCIATION, INC. -TABLE OF CONTENTS- Article 1 Name. Membership. Applicabili .ty and Definitions ............ -1- 1.1 ]Name .................................................. -1- 1.2 Membership .............................................. -1- 1.3 ~ ............................................... -1- 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 Article 2 Association: Meetings. Quorum. Voting. Proxies ............ -1- Place of Meetings .......................................... - 1- Record Date .............................................. - 1- Waiver of Notice ........................................... -2- Adjournment of Meetings ..................................... -2- Proxies ................................................. -3- Quorum ................................................. -3 - Action Without A Formal Meeting ............................... Action By Written Ballot ...................................... Article 3 Board of Directors: Number. Powers. Meeting,~ ............. -4- 3.1 Governing Body: Composition .................................. -4- 3.2 Directors Appointed by Declarant ................................ -4- 3.3 Number of Directors ........................................ -4- 3.4 Nomination of Directors ...................................... -4- 3.5 Election and Term of Office ................................... -4- 3.6 Removal ol~ Directors ........................................ -4- 3.7 Vacancies ............................................... -5- 3.8 Organization Meetings ....................................... -5- 3.9 ~ .......................................... -5- -i- OOK 1 2 5 P, CE 7 ,' 218 OOK 122 o 3.1o ~eaiaL~4e, eai~a ........................................... -5- 3.11 Waiver of Notice ........................................... -5- 3.12 Quorum of Board of Directors .................................. -6- 3.13 Compensation ............................................. -6- 3.14 .Ql;~dl~tIgg~tiag~ ............................................ -6- 3.15 ~ .......................................... -6- 3.16 Action Without A Formal Meeting ............................... -6- 3.17 Telephonic Participation ...................................... -6- 3.18 Powers ................................................. -6- 3.19 /~ ......................................... -7- 3.20 I3_9.lro_w. iag ............................................... -8- 3.21 Fining or Suspension Procedure ................................. -8- Article 4 Officers .......................... -8- 4.1 Qfficers ................................................. -8- 4.2 Election. Term of Office. and Vacancies ........................... -9- 4.3 Additional Officers and Agents .................................. -9- 4.4 Removal ................................................ -9- 4.5 President ................................................ -9- 4.6 Vice President ............................................. -9- 4.7 Secretary ................................................ -9- 4.8 Treasurer ................................................ -9- 4.9 l?x~gallJl~ ............................................. -10- 6.1 6.2 6.3 6.4 Article 5 Committees ........................ -10- Article 6 Miscellaneous ....................... -10- Fiscal Year .............................................. -10- pi~rliamentary Rules ........................................ -lO- {~onflicts ............................................... - 10- Amendment ............................................. - 10- -ii- BYLAWS OF BLUEBERRY HILL HOMEOWNERS ASSOCIATION, INC. Article 1 Name. Membership. Applicabili _ty and Definitions 1.1 Name. The name of the corporation shall be BLUEBERRY HILL Homeowners Association, Inc. (hereinafter sometimes referred to as the "Association"). 1.2 Membership. The Association shall have one class of membership, as is more fully set forth in that certain Declaration of Protective Covenants, Conditions, Restrictions and Easements for BLUEBERRY HILL (such Declaration, as amended, renewed, or extended from time to time, is hereinafter sometimes referred to as the "Declaration"), the terms of which pertaining to membership are specifically incorporated by reference herein. !.3 Definitions. The words used in these Bylaws shall have the same meaning as set forth in the Declaration, unless the context shall prohibit. Association: Article 2 Meetings. Ouorum. Voting. Proxies 2.1 .P_ls~r~Z~&~l~. Meetings of the Association shall be held at the principal office of the Association or at such other suitable place convenient to the members as may be designated by the Board of Directors, either in the Community or as convenient thereto as possible and practical. 2.2 ~lIll~L~q~l]~. There shall be an annual meeting of the members at such date, place and time as the Board of Directors shall dete,cfine to receive the reports of the outgoing Board of Directors, to install directors for the ensuing year and to transact such other business as may come before the meeting. 2.3 s~,~aL~tl~. The President or the Board of Directors may call special meetings. In addition, it shall be the duty of the President to call a special meeting of the Association upon the delivery of a petition signed and dated by members entitled to cast at least 25 % of the Total Association Vote and describing the purpose or purposes for which it is to be held. The notice of any special meeting shall state the date, time, and place of such meeting and the purpose(s) thereof. No business shall be transacted at a special meeting, except those matters that are within the purpose or purposes described in the notice. 2.4 ~. The Board of Directors shall fix in advance a record date for a determination of members entitled to notice of and to vote at any meeting of members or any adjournment thereof, or to make a determination of members for any other purpose, such date to be not more than seventy (70) days before the date on which the particular action requiring such determination of members is to be taken. 2.5 ~g&.~. It shall be the duty of the Secretary to mail or to cause to be delivered to the Lot of each member (as shown in the records of the Association as of the record date) a notice of each annual or special meeting of the Association stating the date, time and place where it is to be held and if and to the extent required by the Georgia Nonprofit Corporation Code (O.C.G.A. Section 14-3-101, et seq.) or other applicable law (the ".G~"), the purpose(s) thereof. If an Owner wishes notice to be given at an address other than the Lot, the Owner shall designate by notice in writing to the Secretary such other address. Notices shall be mailed or delivered not less than ten (10) days (or if notice is mailed by other than first-class or registered mail, thirty (30) days) nor more than sixty (60) days before the meeting. If any meeting of the members is adjourned to a different date, time or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment. If, however, a new record date is or must be fixed under the Governing Law notice of the adjourned meeting shall be given to persons who are members of record as of the new record date. 2.6 W~tiver of Notice. Waiver of notice of a meeting of the members shall be deemed the equivalent of proper notice. Any member may, in writing, signed by the member, waive notice of any meeting of the members, either before or after such meeting. Attendance at a meeting by a member, whether in person or by proxy, shall be deemed waiver by such member of lack of notice or defective notice, unless such member specifically objects to lack of proper notice at the time the meeting is called to order. 2.7 Adjournment of Meetings. If any meeting of the Association cannot be held because a quorum is not present, a majority of the members who are present at such meeting, either in person or by proxy, may adjourn the meeting to a time not less than five (5) nor more than thirty (30) days from the time the original meeting was called. At such adjourned meeting at which a quorum is present, any business which might have been transacted at the meeting originally called may be transacted without further notice. 2.8 Mg. lllhrm~p~L~. After the record date for any meeting is established by the Board of Directors, the Secretary shall prepare an alphabetical list of the names and addresses of all of the members who are entitled to notice of the meeting. Beginning at least two business days after notice is given of the meeting for which the list was prepared, the list of members shall be available for inspection by any member or a member' s agent or attorney at the Association's principal office or at such other reasonable place as may be specified in the notice. In addition, the list shall be available for inspection at the meeting or any adjournmem thereof. -2- 2.9 Voting. The voting rights of the members shall be as set forth in the Articles of Incorporation and the Declaration, and such voting rights are specifically incorporated herein. 2.10 proxies. At all meetings of members, each member may vote in person or by proxy. All proxy appointment forms shall be in writing, dated, and filed with the Secretary before the appointed time of each meeting. Every proxy shall be revocable and shall automatically cease upon: (a) receipt of notice by the Secretary of the death or judicially declared incompetence of a member; (b) receipt by the Secretary of written revocation signed by the member; (c) receipt by the Secretary of a subsequent appointment form signed by the member; (d) attendance by the member and voting in person at any meeting; or (e) the expiration of 11 months from the date of the proxy appointment form. 2.11 Quorum. The presence, in person or by proxy, of members entitled to cast at least 25 % of the votes entitled to be cast at the meeting shall constitute a quorum at all meetings of the Association. The members present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough members to leave less than a quorum. 2.12 Action Without A Formal Meeting. Any action required or permitted to be approved by the members may be approved without a meeting if one or more consents, in writing, setting forth the action so taken, shall be signed and dated by members (including the Declarant or the Builder, if the consent of the Declarant or the Builder is required) holding the voting power required to pass such action at a meeting held on the record date for such action. The record date for such action shall be the date that the first member signs a consent. Such action shall be approved when the Secretary receives a sufficient number of such consents dated within 70 days of the record date for such action. If less than unanimous consent is obtained, the approval shall be effective ten days after the Secretary gives written notice of the approval to all members who did not sign a consent. Each signed consent shall be included in the minutes of meetings of members flied in the pem~anent records of the Association. 2.13 Action By Written Ballot. Any action that may be taken at any annual, regular or special meeting of members may be taken without a meeting if approved by written ballot as provided herein. The Association shall deliver a written ballot to each member entitled to vote on the matter. The written ballot shall set forth each proposed action and provide an opportunity to vote for or against each proposed action. All solicitations for votes by written ballot shall indicate the number of responses needed to meet the quorum requirements; state the percentage of approvals necessary to approve each matter other than election of directors; and specify the time by which a ballot must be received by the Association in order to be counted. A timely written ballot received by the Association may be revoked by the delivery of written notice to the Secretary at any time before the ballots are counted. Approval by written ballot of an action shall only be valid when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting held to -3- OOK 12 2 P ,cE 2 2 2 authorize such action and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. The results of each action by written ballot shall be certified by the Secretary and shall be included in the minutes of meetings of members filed in the permanent records of the Association. Article 3 Board of Directors: Number. Powers. Meetings 3.1 Governing Body: Composition. The affairs of the Association shall be governed by a Board of Directors. Directors shall be natural persons who are 18 years of age or older. Except as provided in Section 3.2, each director must be a member or the spouse of a member. 3.2 Directors Appointed by Declarant. The Declarant shall have the right to appoint or remove any member of the Board of Directors or officer of the Association until such time as the first of the following events shall occur: (a) the expiration of three (3) years after the date of the recording of the Declaration; (b) the date on which twenty-eight (28) Lots shown on the recorded subdivision plat(s) for the Community have been improved with a dwelling and conveyed to an Owner other than Builder; or (c) the surrender by Declarant in writing of the authority to appoint and remove directors and officers of the Association. The directors appointed by the Declarant need not be Owners or residents in the Community. 3.3 Number of Directors. The Board shall consist of three members. 3.4 Nomination of Directors. Elected directors may be nominated from the floor, if a meeting is held for the election of directors and may also be nominated by a nominating committee, if established by the Board. Ail candidates shall have a reasonable opportunity to communicate their qualifications to the members and to solicit votes. 3.5 Election and Term of Office. After the Declarant's right to appoint directors and officers terminates, the Association shall call a special meeting (or take action under Section 2.12 or Section 2.13 in lieu of a meeting) and the members shall elect three directors. The members of the Board of Directors shall hold office for one year and shall continue in office until their respective successors shall have been elected and take office. At annual meetings of the membership thereafter (or pursuant to Section 2.12 or Section 2.13 in lieu of a meeting), directors shall be elected. The three candidates receiving the most votes shall be elected. 3.6 Removal of Directors. At any annual, regular or special meeting of the Association, any one or more of the members of the Board of Directors elected ~y the members may be removed, with or without cause, by a majority of the Total Association Vote and a successor may then and there be elected to fill the vacancy thus created. The notice of -4- the meeting shall state that the purpose, or one of the purposes, of the meeting is removal of a director. A director whose removal by the members has been proposed shall be given an opportunity to be heard at the meeting. Additionally, any director who has three consecutive unexcused absences from Board meetings or who is delinquent in the payment of an assessment for more than 30 days may be removed by a majority vote of the remaining directors. 3.7 Vacancies. Vacancies in the Board of Directors caused by any reason, excluding the removal of a director by vote of the Association, shall be filled by a vote of the majority of the remaining directors. Each Person so selected shall serve the unexpired portion of the term. 3.8 Qrganization Meetings. The first meeting of a newly elected Board of Directors shall be held within ten days after the election at such time and place as the directors may conveniently assemble. 3.9 l~gll~e~. Regular meetings of the Board of Directors may be held at such time and place as shall be detemfined from time to time by the Board, provided that, after the right of Declarant to appoint the directors terminates, at least four such meetings shall be held during each fiscal year with at least one per quarter. Notice of the regular schedule shall constitute sufficient notice of such meetings. 3.10 ~I~c~aLMr, g.~ll~. Special meetings of the Board of Directors shall be held when requested by the President, Vice President or by any two directors. The notice shall specify the date, time and place of the meeting and the nature of any special business to be considered. The notice shall be given to each director by one of the following methods: (a) by personal delivery (including commercial delivery service) to such director's home or office; (b) written notice by first class mail, postage prepaid; or (c) by telephone communication (including facsimile), either directly to the director or to a Person at the director's home or office who would reasonably be expected to communicate such notice promptly to the director. All such notices shall be given or sent to the director's address or telephone number as shown on the records of the Association. Notices sent by first class mail shall be deposited with the U.S. Postal Service at least four days before the time set for the meeting. Notices given by personal delivery or telephone shall be given at least two days before the day set for the meeting. 3.11 Waiver of Notice. The business transacted at any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though taken at a meeting duly held after regular call and notice, if (a) a quorum is present, and (b) either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes which is included in the minutes or filed with the official records of the Association. The waiver of notice or consent need not specify the purpose of the meeting. Notice of a meeting shall also be deemed given to any -5- 223 director who attends the meeting without protesting before or at its commencement about the lack of adequate notice. 3.12 Ouorum of Board of Directors. At all meetings of the Board of Directors, a majority of the directors shall constitute a quorum for the transaction of business, and the votes of a majority of the directors present at a meeting at which a quorum is present shall constitute the decision of the Board of Directors. 3.13 Compensation. No director shall receive any compensation from the Association for acting as such. 3.14 ~iZ~lJ~g~[il~. Ail meetings of the Board shall be open to all members, but members other than directors may not participate in any discussion or deliberation unless expressly so authorized by the Board. 3.15 ~. The Board may adjourn a meeting and reconvene in executive session to discuss and vote upon personnel matters, litigation in which the Association is or may become involved, and orders of business of a similar nature. The nature of any and all business to be considered in executive session shall first be announced in open session. 3.16 Action Without A Formal Meeting. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if one or more consents, in writing, setting forth the action so taken, shall be signed by a majority of the directors and delivered to the Association for inclusion in the minutes for filing in the corporate records. 3.17 Telephonic Participation. One or more directors may participate in and vote during any meeting of the Board by telephone conference call or any other-means of communication by which all directors participating may simultaneously hear each other during the meeting. Any such meeting at which a quorum participates shall constitute a meeting of the Board. - 3.18 Powers. The Board of Directors shall be responsible for the affairs of the Association and shall have all of the powers and duties necessary for the administration of the Association's affairs and, as provided by law, may do all acts and things as are not by law, the Declaration, Articles, or these Bylaws directed to be done and exercised by the members. In addition to the duties imposed by these Bylaws or by any resolution of the Association that may hereafter be adopted, the Board of Directors shall have the power to and be responsible for the following, in way of explanation, but not limitation: (a) preparation and adoption of an annual budget in which there~shall be established the contribution of each member to the common expenses; -6- (b) making assessments to defray the common expenses and establishing the means and methods of collecting such assessments; (c) providing for the operation, care, upkeep, and maintenance of all areas which are the maintenance responsibility of the Association; (d) designating, hiring, and dismissing the personnel necessary for the operation of the Association and, where appropriate, providing for the compensation of such personnel and for the purchase of equipment, supplies, and material to be used by such personnel in the performance of their duties; (e) collecting the assessments, depositing the proceeds thereof in a bank depository which it shall approve, and using the proceeds to administer the Association; (f) making and amending rules and regulations; (g) opening of bank accounts on behalf of the Association and designating the signatories required; (h) enfoming by legal means the provisions of the Declaration, these Bylaws, and the rules and regulations adopted by it, and bringing any proceedings which may be instituted on behalf of or against the members concerning the Association; (i) obtaining and carrying insurance against casualties and liabilities, as provided in the Declaration, and paying the premium cost thereof; O) keeping books with detailed accounts of the receipts and expenditures of the Association and the actions thereof, and specifying the maintenance and repair expenses and any other expenses incurred; (k) determining the Community-Wide Standard as provided in the Declaration; and (1) authorizing contracts on behalf of the Association. 3.19 ~gf~ar, at_~. The Board of Directors may employ for the Association a professional management agent or agents at a compensation established by the Board of Directors to perform such duties and services as the Board of Directors shall authorize. The Declarant or an affiliate of the Declarant may be employed as managing agent or manager. The term of any management agreement shall not exceed one year and shall be subject to termination by either party, without cause and without penalty, upon 90 days' written notice. 3.20 ]~_O. KO..~Eiag, The Board of Directors shall have the power to borrow money without the approval of the members of the Association; provided, however, except as otherwise provided in the Declaration, the Board shall obtain membership approval in the same manner as for special assessments, in the event that the total amount of such borrowing exceeds or would exceed ten percent of the annual budget of the Association. 3.21 Fining or Suspension Procedure. The Board shall not impose a fine (a late charge shall not constitute a fine) or suspend an member's right to vote or to use any part of the Common Property unless and until the following procedure is followed: (a) Notice. Written notice shall be delivered to the member by first-class or certified mail at the address of the member shown on the Association's records, specifying: (i) the nature of the violation, the fine or suspension to be imposed and the date, not less than 15 days from the date of the notice, that the fine or suspension will take effect; (ii) that the violator may, within ten days from the date of the notice, request a hearing regarding the fine or suspension imposed; (iii) the name, address and telephone numbers of a person to contact to challenge the fine or suspension; (iv) that any statements, evidence, and witnesses may be produced by the violator at the hearing; and (v) that all rights to have the fine or suspension reconsidered are waived if a hearing is not requested within ten days of the date of the notice. - (b) Hearing. If a hearing is requested, it shall be held before the Board in executive session, and the violator shall be given a reasonable opportunity to be heard. The minutes of the meeting shall contain a written statement of the results of the hearing. No fine or suspension shall be imposed prior to the date that is five days after the date of the hearing. Article 4 Officers 4.1 Qfficers. The officers of the Association shall be a President, Vice President, Secretary, and Treasurer. Any two or more offices may be held by the same Person, excepting the offices of President and Secretary. The President and Treasurer shall be elected from among the members of the Board of Directors. : -8- 4.2 Election. Term of Office, and Vacancies. Except during the period in which the Declarant has the right to appoint the officers of the Association under Section 3.2 of these Bylaws, the officers of the Association shall be appointed annually by the Board of Directors at the first meeting of the Board of Directors following the election of directors. A vacancy in any office arising because of death, resignation, removal, or otherwise may be filled by the Board of Directors for the unexpired portion of the term. 4.3 Additional Officers and Agents. The Board of Directors may appoint such other officers, including vice presidents, assistant secretaries and assistant treasurers, and agents as it shall deem necessary. Such officers and agents shall hold their respective offices for such tei-ix-~s and shall exercise such powers and perform such dutie_s as shall be determined from time to time by the board of directors. 4.4 ~Removal. Except for officers appointed by the Declarant, any officer may be removed, with or without cause, by the Board of Directors. 4.5 president. The President shall be the chief executive officer of the Association and shall preside at all meetings of the members and directors. The immediate supervision of the affairs of the Association shall be vested in the President. It shall be the President's duty to attend to the business of the Association and maintain strict supervision over all of its affairs and interests. The President shall keep the Board of Directors fully advised about the affairs and conditions of the Association, and shall manage and operate the business of the Association pursuant to and in accordance with such policies as may be prescribed from time to time by the Board of Directors. 4.6 Vice President. The Vice President shall act in the President's absence or disability and shall have all powers, duties, and responsibilities provided for the President when so acting, and shall perform such other duties as shall from time to time be imposed upon any Vice President by the Board or delegated to a Vice President by the President. 4.7 Secreta~. The Secretary shall keep the minutes of all meetings of the members and of the Board of Directors; notify the members and directors of meetings as provided by these bylaws and Georgia law; have custody of the seal of the Association; affix such seal to any instrument requiring the same; attest the signature or certify the incumbency or signature of any officer of the Association; and perform such other duties as the President, or the Board of Directors may prescribe. The Secretary shall perform the duties of the Treasurer of the Association in the absence or disability of the Treasurer. 4.8 Treasurer. The Treasurer shall keep, or cause to be kept, the financial books and records of the Association, and shall faithfully account for the Association's funds, financial assets, and other assets entrusted to the Treasurer's care and custody. The Treasurer shall make such reports as may be necessary to keep the President and the Board of Directors informed at all times as to the financial condition of the Association, and shall pertbrm such -9- other duties as the President, or the Board of Directors may prescribe. The Treasurer shall maintain the money and other assets of the Association in the name and to the credit of the Association in such depositories as may be designated by the Board of Directors. The Treasurer may provide for the investment of the money and other assets of the Association consistent with the needs of the Association to disburse such money and assets in the course of the Association's business. The Treasurer shall perform the duties of the Secretary of the Association in the absence or disability of the Secretary. 4.9 ~. Any officer may resign at any time by giving written notice to the Board of Directors. Such resignation shall take effect on the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Article 5 Advisory committees to perform such tasks and to serve for such periods as may be designated by the Board are hereby authorized. Each committee shall be composed and shall operate in accordance with the terms of the resolution of the Board of Directors designating the committee or with rules adopted by the Board of Directors. An advisory committee shall not be authorized to exercise any authority of the Board under the Articles of Incorporation, the Declaration, these Bylaws or the Georgia Nonprofit Corporation Code. Article 6 Miscellaneous 6.1 Fiscal Year. The fiscal year of the Association shall be the calendar year unless otherwise dete~ined by resolution of the Board. - 6.2 Parliamentary Rules. Roberts Rules of Order (current edition) shall govern the conduct of all Association proceedings, when not in conflict with Georgia law, the Articles of Incorporation, the Declaration or these Bylaws. 6.3 Co~icts. If there are conflicts or inconsistencies between the provisions of Georgia law, the Articles of Incorporation, the Declaration and these Bylaws, the provisions of Georgia law, the Declaration, the Articles of Incorporation and the Bylaws (in that order) shall prevail. 6.4 Amendment. These Bylaws may be amended by the Board of Directors with the consent of the Declarant if such amendment is necessary to: (a) bring any provision hereof into compliance with any applicable governmental statute, rule, or regular, ion or judicial determination which shall be in conflict therewith; (b) enable any title insurance company to issue title insurance coverage with respect to the Lots subject to the Declaration; (c) enable an -10- institutional or governmental lender or purchaser of mortgage loans, including, without limitation, the Federal National Mortgage Association or Federal Home Loan Mortgage Corporation, to make or purchase Mortgage loans on Lots subject to the Declaration; or (d) enable any governmental agency or insurance company to insure or guarantee Mortgage loans on the Lots subject to the Declaration. In addition, these Bylaws may be amended upon the affirmative vote of at least two-thirds (2/3) of the Total Association Vote and the consent of Declarant; provided, however, that the U.S. Depa, ia.ent of Veterans Affairs (if it is then guaranteeing Mortgages in the Community or has in effect a project approval for the guaranteeing of such mortgages) and/or the U.S. Department of Housing and Urban Development (if it is then insuring any Mortgage in the Community or has in effect a project approval for the insuring of such mortgages) shall have the right to veto amendments to these Bylaws for as long as the Declarant has the right to appoint and remove the directors and officers of the Association.. G:\DATA2\CLIENTS\DND~ 1005~BLUEBERR'~BYLAW$,2